By Jim Cline and Peter Haller
In Andrade v City of Milwaukee, the Wisconsin State Supreme Court ruled that a police officer fired for making racist comments on Facebook was not entitled to getting his job back because of an alleged pre-termination due process violation. The Court reasoned that the officer was entitled to notice of the charges against him, but not to all the information related to factors involved in determining the level of discipline imposed.
By Jim Cline and Peter Haller
In, Town v. Dade County Police Benevolent Association, a police officer was reinstated without back pay after he was discharged for allegedly harassing peer officers through a pattern of antisemitic and misogynistic comments. Arbitrator David Mudrick held that the harassment did not rise to the level of discharge and ordered the Employer to convert the discharge to an unpaid suspension and allow the officer to maintain his seniority.
By Jim Cline and Kim Lowe
In King County, Arbitrator Latsch upheld the discharge of Deputy Fire Marshall, Mr. A, who was fired after a citizen complained that he drove aggressively in his work vehicle and harassed her. Latsch found that King County had just cause to terminate A, in large part because of A’s “evasive and false statements” about the incident and repeatedly changing his story while it was investigated.
Jim Cline and Kim Lowe
In City of Maumee, Arbitrator Szuter upheld a police officer’s termination for gross incompetence and inefficient performance. Even though Officer A_ was a five-year member of the department and several infractions would not have been enough, on their own, to sustain the termination, Arbitrator Szuter found that the volume of infractions in a short time was an aggravating factor, as was Officer A’s failure to take accountability.
By Jim Cline and Stephen Hatton
In City of Selma, Arbitrator George Riggs, Jr. held that Selma, California’s Police Department had just cause to terminate an officer who had violated six of its departmental policies between 2005 and 2021.
By Jim Cline and Troy Thornton
Arbitrator Matthew M. Franckiewicz found that the Employer, Allegheny County, Pennsylvania, correctly denied access to paid parental leave to Officer Randy Alexander. Allegheny Cnty., 2021 BL 159834, 2021 BNA LA 32Although the language in a new interest arbitration award allowed the leave to be taken at any point within the first 12 months of a birth, Arbitrator Frankiewicz held that the interest arbitrator’s award, which specifically ordered the new language on a nonretroactive basis, was only meant to apply to births that occurred after the award was published.
By Jim Cline and Troy Thornton
Arbitrator Patrick Halter found that a union representing federal corrections officers in Seagoville, Texas, failed to file a timely grievance on an alleged arbitrator transfer when it believed four of its members had been transferred arbitrarily. Halter ruled in Federal Bureau of Prisons, 2020 BNA 1413 that even though the employer failed to respond to the grievance in a timely manner, a greater error was made by the Union in failing to file a grievance within the 40 days allowed in the CBA.
The Union had alleged that the Employer violated the CBA by transferring Officers Boykin, Horace, Smith, and Lapore away from their bid-for posts within the corrections facility. On November 21, 2019, Boykin and Horace were moved away from their post in the Segregated Housing Unit into the Phone Monitoring Room. On February 25, 2020, Smith and Lapore were also moved from the Segregated Housing Unit into the Phone Monitoring Room. The Union believed that these transfers were unnecessary, and the common link between the four individuals is that they were all under investigation for other disciplinary matters.
The parties met informally, as is suggested in the CBA, on March 5, 2020. After failing to reach a settlement through informal discussions, the Union formally grieved the issue on April 15, 2020.
The Union argued that it should be entitled to a judgment in its favor without a hearing because the Employer failed to respond to its April 15, 2020 grievance. Under the language of the CBA, the Employer is allowed 30 days to respond to a grievance. Based on the April 15 filing date, the Employer’s response should have been received by May 15, 2020. Instead, the Employer failed to respond at all.
The Employer, on the other hand, argued that the grievance should be dismissed on the basis that the Union did not file its grievance in a timely manner. Despite language in the CBA suggesting that the sides attempt to meet and resolve issues informally, the Union had 40 days to file a grievance, and failed to do so. For the transfer involving Boykin and Horace, 40 days from the date of the transfer would have meant December 31st, 2019. For the one involving Smith and Lapore, 40 days would have meant April 5, 2020.
Arbitrator Halter felt that the timeliness issue should be resolved before anything else and examined the grievance timing language. Because the language of the CBA required a grievance to be filed within 40 days from the event, or within 40 days of when the individuals involved should have been aware of the grievance, an issue existed as to whether the employees should have been aware of the issue on November 21st and February 25th. Ultimately, Halter determined that the actions involved were straightforward enough that the officers should have been aware that the actions might be grievable, which resulted in his ultimate determination that the grievance was not filed in a timely manner. As a result, the grievance was denied.
A reassignment is not an esoteric act unannounced to affected officers. In this situation officers were removed from their bid posts or assignments – their preferred posts – and placed in PMU pending investigations referenced by FCI under Article 30 – Disciplinary and Adverse Actions. The officers were reasonably aware when this grievable event occurred – November 21, 2019 (Officers Horace and Boykin) and February 25, 2020 (Officers Lapore and Smith) – as they were the recipients of it. The 40-day contract window to file a grievance was not extended by having the Union file a grievance April 15, 2020, identifying the Local as the grievants.
Most arbitrators are reluctant to find the grievance is resolved on a “forfeiture” based on lapsed timeliness. But it does occur when grievances are filed well beyond agreed upon timelines. Always be mindful of when events occurred and what the Grievance Procedure timelines. They are mandatory, not optional.
One key takeaway from this decision is that language encouraging the informal settling of grievances may come back to punish well-intending executive boards. Because the lapsed grievance situation arises so often under contracts that use an informal or verbal first step, Cline and Associates recommends against including such steps in the contact. Step 1 should be in writing with a required written and timely response by the employer. If you do have to deal with an informal grievance step, we recommend that you document the verbal communications over the status of the grievance in writing. A recurring issue we have seen is that management claims that it has fully responded to the informal grievance, while the grievant or union believes it is still awaiting an answer.
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By Jim Cline and Troy Thornton
In Merced Sheriff’s Office, 2020 BNA 1296, Arbitrator Patrick Halter upheld the termination decision of an unnamed Merced County Sheriff’s Deputy. The Deputy was fired after giving inconsistent and dishonest answers during an internal affairs interview, stemming from an on-duty sexual rendezvous reported by a passerby.
By Jim Cline and Troy Thornton
Arbitrator Kenneth J. Latsch found that the Las Vegas Metropolitan Police Department had just cause to terminate Officer Raymond Cuevas for accessing the department database in furtherance of a romantic relationship. The termination occurred after the Department sustained “conduct unbecoming an officer” charges against Cuevas when he accessed the Department’s database to locate the address of a former romantic interests’ new boyfriend who he then confronted at the discovered address.
By Mark Anderson and Katrina Thornton
In Bonilla v. City of Philadelphia, a Philadelphia court denied the City of Philadelphia’s request to throw out a Christian tow truck driver’s lawsuit claiming that he had been discriminated against because of his faith. The court held the Department may have created an offensive work environment based on the driver’s religious beliefs.
